Opinion
Delivered February 5, 1990
Effective March 1, 1990, the following changes in the Arkansas Rules of Criminal Procedure will take effect:
A.R.Cr.P. Rule 13.1 (b) is hereby amended to read as follows:
(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
Reporters Note
The underlined language, suggested by the United States Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527 (1983), has been added to make it clear that failure to meet the "particular facts" requirement of the second sentence of subpart (b) does not require that the warrant be quashed on the evidence suppressed if this affidavit provides "a substantial basis for a finding of reasonable cause to believe" that the things seized were in a particular place.
Rule 38 is hereby added to the Rules of Criminal Procedure, to read as follows:
No rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.
Reporter's Note
This proposal was recommended by the Arkansas Bar Association Committee on Minimum Standards for the Administration of Criminal Justice.
Rule 37.2 of the Arkansas Rules of Criminal Procedure is hereby amended by adding the following:
(f) Within twenty days after service of a motion under this rule, the state may file a response thereto, with evidence of service on opposing counsel or on the movant if he or she is acting pro se.
Reporter's Note
This proposal gives the state twenty days rather than ten to answer Rule 37 petitions.
HICKMAN, J., dissents.
I dissent to this court's illegal adoption of a substantive rule of law. This court cannot legislate and the adoption of A.R.Cr.P. Rule 13.1 (b) is unconstitutional and void.
It is elementary that courts adjudicate and legislatures legislate and neither can encroach upon the domain of the other. While courts have some powers to adopt practice and procedural rules relating to courts, they have none to adopt principles or statements of substantive law as "procedure." 16 Am.Jur.2d Constitutional Law 316.
We find ourselves in the novel situation of taking the decisions of the Supreme Court interpreting the United States Constitution, reducing them to rules and then following the rules instead of the Supreme Court decisions. The criminal rules of procedure need to be purged of all provisions that do not relate strictly to court practice and procedure.